THE AMERICAN LEGAL PROFESSION
Authority and Mechanisms of Bar Regulation:
1. State Supreme Courts
® Bar Admission
® Attorney discipline
2. State Legislatures and Administrative Agencies
3. Federal Courts
Why States Regulate Bar Admission?
® to mandate minimum levels of competence;
® to detail affirmative standards of conduct;
® to protect clients who are unfamiliar to the law;
® to protect clients from lawyer wrongful conducts
(fraud, mishandling of funds, betrayal of confidences etc.);
® to protect courts from subordination, misrepresentation;
® to protect the legal profession reputation;
® to protect the profession from external regulation;
® to control supply of legal services.
Sanctions for non-compliance:
® disbarment
® suspension
® public reprimand (published declaration that the attorney’s conduct was improper)
® private admonitions (reprimand in private)
® monetary sanctions
® re-take the Bar exam
® limitations on practice
® administrative requirements
® substance abuse treatment
® law-firm discipline
Sources for analysis of Ethics Problems:
® State ethics code
® ABA & local Bar associations
® Statutes
® Judicial decisions
® Court rules
Functions performed by a lawyer:
® Advisor: provides client with understanding of his legal rights, obligations and practical implications;
® Advocate: asserts the client’s position under the rules of the adversary system;
® Negotiator: seeks a result advantageous to the client;
® Evaluator: examine client’s legal affairs and reports about them to him or others.
A lawyer should be: Competent, prompt, diligent, maintain communication with client and keep information related to representation in confidence:
ABA MODEL RULES OF PROFESSIONAL CONDUCT:
1) COMPETENCE:
® legal knowledge
– relative complexity and specialized nature of the matter
– lawyer’s general experience
– training and experience in the field in question
– preparation and study lawyer will be able to give the matter
– whether it is possible to consult with another attorney (a specialist)
® skill
® thoroughness
® preparation reasonably necessary for the representation
2) SCOPE OF REPRESENTATION OF AUTHORITY BETWEEN CLIENT AND LAWYER:
® abide to client’s decisions concerning the objectives of representation;
® consult the client as to the means by which the objectives are going to be pursued;
® is impliedly authorized to carry out the representation;
® abide by clients decision whether to settle a matter, plea to be entered, waive trial
or if client will testify.
3) DILIGENCE:
® shall act with reasonable diligence (care and attention required by the circumstances) and promptness in representing a client.
4) COMMUNICATIONS:
® inform the client of any decision or circumstance with respect to the representation;
® consult with the client about the means to achieve client’s objectives;
® comply with reasonable requests for information;
® let client know about the limitations to the attorney’s representation according to the Rules of Professional Conduct or other law;
® explain a matter to the extent necessary for the client to make a decision regarding the representation.
5) FEES:
® shall not receive an unreasonable fee.
® factors to be considered in order to establish the fee:
– time and labor required;
– if case will preclude other employment by the lawyer;
– fee customarily charged for the same legal service;
– the amount involved and results obtained;
– time limitations;
– the professional relationship with the client;
– experience, reputation and ability of the lawyer;
– fixed or contingent fee.
® info about the fee should be provided to the client in writing before the representation begins;
Contingent fee: contingent on the outcome of the matter, except when prohibited, lawyer receives a percentage of the outcome as payment.
® shall not receive contingent fees:
– in domestic relations matter;
– for representing client in a criminal case.
® contingent fee agreement:
– in writing;
– signed by the client;
– information regarding the fee determination method, other expenses to be deducted etc.
6) CONFIDENTIALITY OF INFORMATION/DUTY OF CONFIDENTIALITY:
a) Prospective clients: anyone who discusses issue with a lawyer with the possibility of forming a client-lawyer relationship.
– even if there won’t be a client- lawyer relationship, the lawyer can’t reveal information from the discussion;
– lawyer will not be able to represent someone with adverse interests from that prospective client in the same or a in a related matter.
b) Attorney – client privilege (ACP):
® communications made in private between client and attorney (for the purposes of obtaining or providing legal assistance) are protected from disclosure, unless privilege is waived;
® Exceptions: crime/ fraud, dispute between client/ attorney;
® this privilege doesn’t protect underlying facts from disclosure;
communication not intended to be confidential for purposes of legal advice is not protected;
® ACP survives client’s death.
c) Work-product doctrine: work that has been generated by the lawyer, such as research, notes, memos etc.
ACP and work-product doctrine apply in judicial and other proceedings i
ted for any improper purpose;
® the claims/ defenses are warranted by existing law or a non-frivolous argument;
® the allegations have/ can have evidentiary support;
® the denials are warranted in evidence or reasonably based on a lack of information.
8) REPORTING PROFESSIONAL MISCONDUCT:
– Attorneys should act as “police” towards their own profession.
– It differs from ACP protection because it deals with regulation of the profession.
® a lawyer who knows (not suspects!) that another lawyer has committed a violation to the Rules of Professional conduct shall inform the appropriate authority;
® a lawyer who knows that a judge has committed a violation to the applicable rules of judicial conduct shall inform the appropriate authority;
* the violation must raise a substantial question as to the lawyer/ judge trustworthiness.
COMMON LAW SYSTEM/ CIVIL LAW SYSTEM
1) Civil Law system:
The system of many western European countries and ex-colonies places an emphasis on statutory or code law.
2) Common Law:
® court opinions, all case law;
® the legal system of England and its colonies (such as the U.S.);
® the case law and statutory law in England and in the American colonies before the American revolution;
® judge-made law in the absence of controlling statutory law or other higher law.
– Courts are sometimes confronted with disputes for which there is no applicable law. There may be no constitutional provisions, statutes or administrative regulations governing the dispute. When this occurs, the court will apply (or create) common law to resolve the controversy.
– Common Law grows slowly case by case. Radical changes are not encouraged and are rare. Once a court decides a case, it becomes a potential precedent that can be helpful for the resolution of similar cases in the future. Under the doctrine of stare decisis.
Precedent: a prior decision that can provide some guidance for the resolution of a current dispute before the court.
Stare Decisis: doctrine that courts should decide similar cases in the same way unless there is good reason for the court to do otherwise.
Cause of action: a legally acceptable reason for suing. Facts that give a party the right to judicial relief.
